EPA breached duty to review oil dispersant plan – court

The seal of the US Environmental Protection Agency at headquarters in Washington, DC REUTERS / Ting Shen

  • The agency has until 2023 to publish a rule updating the criteria for the safest dispersants

(Reuters) – A federal judge in San Francisco has ruled that the Environmental Protection Agency illegally failed to revise nearly three decades old regulations that determine which chemicals are allowed to break up oil slicks in water.

In a ruling on Monday, U.S. District Judge William Orrick said the EPA breached its non-discretionary duty under the Clean Water Act (CWA) to update the criteria, listed in its national plan to Oil and Hazardous Substance Pollution Response (NCP), which determines which oil dispersants are sufficiently safe in light of the latest scientific advances.

EPA spokesman Ken Labbe said the agency was reviewing the court decision.

Pamela Miller, executive director of co-complainant Alaska Community Action on Toxics (ACAT), said in a statement: “This decision sets us on the path to protecting the health and well-being of our waters, wildlife and people from exposure to hazardous dispersant chemicals that exacerbate the toxicity of petroleum.

Orrick has accepted the remedy proposed by the EPA, namely to publish a final rule by May 2023 that will revise the criteria it uses to authorize dispersants.

ACAT and other environmental groups sued the EPA last year. They are represented by Claudia Polsky of the Berkeley Law School Environmental Law Clinic.

The groups claimed that because the EPA had not updated the parts of the NCP that deal with the effectiveness of dispersants since 1994, it violated its duty under the CWA to ensure that the plan is effective. and reflects the latest science and technology.

The plaintiffs said some 133 million Americans who live near the coasts are at risk by the EPA’s failure to revise the plan, with the most serious health impacts from exposure to dispersants such than Corexit, including kidney and liver damage. (Corexit was the most widely used response product during the BP Deepwater Horizon oil spill in 2010, Polsky told Reuters.)

Orrick, in his ruling, disagreed with the EPA’s argument that the agency’s obligation to update the plan had not been triggered because there is no evidence that it is ineffective.

The judge said a report released by the Office of the Inspector General of the EPA, the agency’s internal watchdog, in response to the Deepwater Horizon oil spill reinforced the conclusion that the current plan is ineffective.

The report found that the test methods used by the EPA to assess the effectiveness of dispersants were outdated.

Orrick also found that the EPA broke the Administrative Procedure Act because it unreasonably delayed the release of a rule it proposed in 2015 that would have updated the NCP to revise which dispersants can be used.

The case is Earth Island Institute et al v. Wheeler et al, US District Court for the Northern District of California, No. 3: 20-cv-00670.

For Earth Island Institute: Claudia Polsky of the Berkeley Law School Environmental Law Clinic.

For Wheeler et al: Mark Rigau of the US Department of Justice.

Read more:

EPA fails to disperse lawsuit over ‘outdated’ oil spill plan

EPA sued over ‘obsolete’ oil dispersant plan

Sebastien malo

Sébastien Malo reporters on environmental, climate and energy litigation. Contact him at [email protected]

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